Congress by Design: How the Founders Built America's Most Powerful Branch

Host Dr. Katie Crawford-Lackey welcomes back Dr. Lauren Bell to explore how the Constitutional Convention's historic compromises shaped Congress into America's most powerful branch of government. From Madison's Virginia Plan to the Great Compromise that created our bicameral legislature, Bell reveals how enumerated and implied powers actually work in practice. Discover why congressional representation has become increasingly unequal over time, how air conditioning changed Congress forever, and why members strategically deflect responsibility to other branches as "single-minded seekers of reelection." Bell offers eye-opening insights into modern challenges and practical solutions for restoring public trust through better constituency connections, genuine oversight, and civic engagement. 

Transcript

announcer (00:01):

Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American hosted by Dr. Katie Crawford Lackey. In featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals and legal practitioners, we examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.

Katie Crawford-Lackey (00:38):

Hello and welcome back to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey with James Madison's Montpelier. In this episode, we're exploring Article one of the US Constitution, the longest of the seven articles which established the legislative branch. After years with the weak Congress. Under the Articles of Confederation Delegates at the 1787 Constitutional Convention knew that they had to build a stronger, more effective system, and fixing Congress was key to this. How this new legislature would be structured was one of the most contentious questions at the convention. Now, James Madison arrived at the convention with a well-developed vision for how this new Congress should be structured. Drawing on extensive preparation that he did here at Montpelier, Madison drafted the Virginia Plan, which proposed a two house legislature with both chambers based on population giving greater influence to larger states. Now, spoiler alert, this is not the structure we ended up with.

(01:46):

So how did Madison's vision spark debate in what compromises shaped the Congress that we know today? In this episode, we'll dive into the ideas, tensions, and negotiations that gave rise to Article One and explore the structure of Congress and how it continues to shape American democracy today. Joining us once again in the studio is Dr. Lauren Bell, the James L. Miller, professor of Political Science at Randolph Macon College. She's also a former American Political Science Association Congressional Fellow and a former fellow at the United States Supreme Court. Her newest book, transatlantic Majoritarianism, how Murder Migration and Modernity Transformed Legislatures in the Late 19th Century will be published in December by Clemson University Press. Lauren, thank you so much for joining us in the studio here today. It's great to have you back.

Lauren Bell (02:44):

Thank you so much for having me back. I love being here.

Katie Crawford-Lackey (02:47):

As we begin our conversation today, I want to start with talking about something I mentioned earlier. We have the delegates at this constitutional convention. They're meeting because there is a really weak form of government at the time under the Articles of Confederation. How did this intense focus on the legislative branch, the weaknesses at the time when they're meeting, how did that drive this intense focus on creating a new structure under this draft constitution?

Lauren Bell (03:19):

I think we have to start by thinking about the fact that there were two reasons that at the convention, the delegates really were focused on Congress. The first was under the Articles of Confederation, you had a unicameral legislature, and that was essentially it. And that unicameral legislature consisted of functionally independent states that formed a loose association with each other, but they hadn't really ever hashed out what that meant. And so we know for example, that when Shay's Rebellion breaks out in Massachusetts and Massachusetts says, Hey, we need help putting down this rebellion. The other states were kind of like, eh, no, we don't feel like it. Congress lacked any kind of authority to mobilize military forces from the other states. They didn't have the ability to raise their own militia. They had no funding mechanisms that they could draw upon to provide support. And so clearly there has to be a change.

(04:20):

And so starting with the legislature is the obvious point of departure because that's what they had to work with at the time. I think the second explanation for why there was such an intense focus was because for our founders, they really did believe that governmental power needed to be derived from the consent of the governed. Now, they had a narrow concept of who was entitled to give their consent, but they really did believe that, right? Their own experience living as colonists under King George, the whole issue of taxation without representation, they felt very strongly that in order for government to act that the people had to give a cent. And so where else would you locate the authority of government, if not in an assembly of the people or representative of the people. So between the fact that you have this need to solve the problems of the Congress under the Articles of Confederation and the sincere belief that Congress is where representational authority should rest, that drove a lot of that focus at the convention.

Katie Crawford-Lackey (05:31):

So these are some of the driving forces. Now, what happens at the convention and what do we ultimately end up with in terms of our structure?

Lauren Bell (05:42):

Yeah, sure. Well, you kind of previewed it, right? James Madison, who's wonderful home we have the privilege to be at today. Madison comes to the convention in 1787, and he's a smart guy. He knows that the person who comes in with some ideas is to be able to drive the agenda. So he comes in with his Virginia plan, and in that plan, as you said, he proposes a bicameral legislature where both houses would be apportioned on the basis of population. Now, I think if we had listened to Madison, we would be in a different place right now in terms of some of our questions about the democratic nature of the Senate, or shall we say, the non-democratic nature of the United States Senate today. But he proposes that you're going to have these two chambers. There'll be a portioned on the basis of population, and as you mentioned, that's going to give large states a leg up in terms of controlling what Congress is able to do.

(06:38):

And predictably, small states are not thrilled about this. And so what you have emerged as a response to Madison's Virginia plan is the New Jersey plan. And so here's a proposal made by small states, primarily by the delegates from New Jersey to try to protect the interest of those smaller states. So the New Jersey plan proposes a unicameral legislature like, Hey, we had that under the articles and maybe it wasn't great, but that doesn't mean you throw the baby out with the bathwater. It means maybe you fix it. And the proposal was for a unicameral legislature with equal representation from each state, obviously that's going to be much more satisfactory to smaller states. Ultimately, we get the great compromise. The great compromise is the bicameral legislature with a House of Representatives apportioned on the basis of population and with the United States Senate apportioned equally two senators per state.

(07:39):

And that's a very direct example of where you have one plan from the large states, a second plan from the small states, and to try to keep everybody together. And at the negotiating table, the deli is to the convention said, look, we can compromise. And I should say at the outset that literally everything in our constitution is a compromise. So that great compromise had to take place fairly early on because otherwise you would not have been able to reach agreement. We would not have been able to move forward and move away from the articles of Confederation. So we call that the great compromise.

Katie Crawford-Lackey (08:17):

Now that we have a sense of how this Congress came about, how this structure was put together through this compromise, what powers did Article One give Congress that established it as the central force of representative government?

Lauren Bell (08:34):

Sure. So Article one, and for any listeners who are out there who want to actually look at this for themselves, it's Article one, section eight, which is where the powers of Congress are outlined. And Article one, section eight is extensive in terms of describing the powers of the institution. So certainly lawmaking is what we think of as Congress' primary function, but that's one of the primary powers given to Congress. But then as you read down that list of powers in Article one, section eight, you start to see the powers that are aimed at giving Congress some ability to manage issues that affect more than one state. So for example, article one, section eight, clause three is the commerce clause. And Congress has given the power under the Constitution to regulate commerce among the several states or between the United States and with the Native American tribes.

(09:31):

That's a clear example of where the framers, as they looked at how do we improve upon what we had under the articles said, you cannot have each individual state negotiating with Native American tribes separately making separate trade agreements. You cannot have individual states negotiating with foreign countries establishing different trade routes, right? That's clearly something that has a national focus. So under Article one, section eight, clause three, under the Commerce Clause, Congress is going to have the ability to regulate interstate and even international commerce and trade. Congress gets to fund all aspects of government. Congress gets to establish post offices and post roads. Congress gets to establish uniform weights and measures. I like to explain to my students, imagine that you are a farmer and you are selling your wheat by the pound, but what that means in terms of your price, a pound in Virginia is only let's say eight ounces, not 16 ounces as it is in Maryland, right?

(10:41):

Those prices would be different. So establishing uniform weights and measures actually had real implications for people's lives and for the commercial activities taking place within the United States. So Congress has this long list of enumerated powers. They can raise an army and a Navy, Congress declares war, Congress can create lower courts. So under Article three, we have a Supreme Court, but Article III says, and such inferior courts as Congress shall ordain and create. So even in the part of the constitution that's giving rise to our judicial branch, it's still saying Congress will decide what lower courts should look like. So Congress has extensive enumerated powers under Article One, section eight, and Congress also has what we call implied powers. Those come out of the necessary and proper clause still in Article one, section eight, the necessary and proper clause says Congress has the ability to do whatever it deems necessary and proper in order to carry out its foregoing enumerated powers.

(11:51):

This is ultimately going to come to a head in McCulloch v Maryland, the case about whether Maryland had the authority to tax a national bank. And in that case, the Supreme Court said after a very, very lengthy exposition about what the meaning of the word necessary was that the word necessary doesn't have to mean absolutely necessary. It can simply mean helpful. If Congress would find taking some action helpful to being able to carry out its foregoing powers, then that's sufficient under the Constitution for Congress to be able to do it. So those implied powers under the necessary and proper clause also dramatically expand the power of Congress beyond that set of enumerated powers.

Katie Crawford-Lackey (12:37):

And can you just clarify enumerated versus implied and what exactly?

Lauren Bell (12:41):

Sure. No, that's a great question. So enumerated means it is a thing that is specifically written down. So where it says that Congress can declare war, that's an enumerated power because those words are on the page. An implied power is that Congress supports a budget for entertainment for troops who are deployed. It doesn't say that in Article one, section eight, Congress has to provide entertainment for troops that we deploy, but Congress regularly funds USO and other types of activities that would support our troops abroad that would come out of their implied powers. So that's what we mean. We distinguish between is it written on that list of powers in Article one, section eight, or is it something that Congress is doing because it believes it's helpful to carry out those other powers?

Katie Crawford-Lackey (13:33):

Lauren, this is a really fascinating part of the Constitution and how it's written this balance of, okay, what do we actually want to spell out that Congress can do? And we've talked about this in past episodes too. Obviously the founders knew there are going to be things we cannot anticipate in the future. How do we give the Congress enough power but not too much like leaving it open? Can you help us make sense of how that power kind of has come to fruition over time? It sounds like from at least this moment in time as they're drafting the constitution, Congress is the closest branch to the people. That's where they want a lot of the power, but obviously I think that has changed over time. So what does, and I know that's a big question. That's a big question,

Lauren Bell (14:25):

And I'll push back a little bit on that question only to say that the Constitution really hasn't changed over time in terms of what the document says that Congress's powers are. What has changed over time, I think is the scope of issues that our government has to manage. And so certainly at the founding, the framers were managing what for them might have seemed like insurmountable questions, but our founders weren't going to anticipate technology the way that we experience today. They weren't going to be thinking about everything from cyber attacks to genetically modified food. These were just not things that they could even have possibly conceived of. And so when you say they were writing that document, anticipating that it would be changed, that's absolutely right. I think the way in which it has changed over time has to do with the extent to which Congress has applied the principles in the Constitution to the new questions that have arisen.

(15:29):

And in many respects, I think if Madison or Hamilton or Jefferson, somebody came back today and went and sat in on a congressional debate, I don't think they would be that surprised by what that looked like, that the actual act of making laws is very similar. It was contentious, it was polarized. Debates got heated, right? We've had episodes where people beat each other with fireplace pokers on the floor of the house chamber. I don't think they would be completely surprised, but what they would be surprised by in my view, is the nature of the kinds of questions that Congress is regularly confronted with. And I can give you a practical example of kind of change over time. So we talked about clause three in Article one, section eight, the commerce clause, and at the time the kinds of questions related to the commerce clause were like, does sailing and navigable waters between two states constitute something that Congress regulates?

(16:32):

Right? That's that kind of question. But if we think back to 2012 and the Supreme Court's decision in N-F-I-B-V Sebelius about whether or not the individual mandate in the Affordable Care Act was constitutional, that was ultimately decided as unconstitutional under the Commerce Clause, but constitutional under Congress's taxation clause. And there's an example where the majority of the courts said Congress has for decades been claiming that functionally everything is commerce, because if you buy anything, some part of it will have been made somewhere else. So everything can be regulated under the interstate commerce clause or under that part of the Commerce Clause. And the court pushed back on that and said, requiring people to pay a penalty if they don't buy something, if they don't engage in commerce, that is stretching the commerce clause too far. So there's an example of where the words on the page haven't changed, but where over time, the way in which Congress was applying the Commerce Clause to a variety of actions it was taking ultimately was challenged in court.

(17:46):

And the court said, that's not what the framers meant by commerce Inactivity failing to purchase something cannot be regulated under the Commerce clause, but if you want to impose a penalty in this instance, you can do that under the taxation clause, the way our tax laws are used to encourage particular types of behavior in other circumstances. So I think that's an example of where this isn't just something that happened in 1787 and then it gets ratified and we start using it in 1789. These are very, very real elements of how Congress does its work. Even today.

Katie Crawford-Lackey (18:24):

I appreciate this kind of distinction that you're making the process of lawmaking versus the types of things, the scope of things that the Congress has to manage. And I think that's a great example of should healthcare be required of all citizens being challenged under this Article one section eight commerce clause.

Lauren Bell (18:48):

And to be clear, the procedural side of things has also changed over time. If you've ever read David McCulloch's biography of John Adams, and he describes Adams coming in to preside over the Senate for the very first time in the very first Congress, and Adams literally has no idea what he's supposed to do, and ultimately he decides he'll just make a six hour speech, which I don't believe the other senators thought was what he was supposed to do. But truly at the outset of the first Congress in 1789, the procedures were very different. Again, very little to do few proposals. All of the members were new. Few of them really wanted to be in Congress, right? Some of our initial congresses had turnover rates of 40%, and that's within the Congress, right? Almost half of the members wouldn't serve out the full two year term. Congress has institutionalized over time, it's become a more attractive place to work.

(19:44):

Actually, the Congressional scholar, Nelson Sby points out that air conditioning had a lot to do with that in about 1940 as the Capitol Building was among the first public buildings in the United States to get air conditioning. And once you had air conditioning in the Capitol, that made it a more attractive place to work for members who previously were going home for summer recess. But if you're from South Carolina or Mississippi or Alabama or Florida, you don't want to go home for summer recess if you've got air conditioning in the building. And so Colby's wonderful, he passed away, but he talks about institutionalization and the creation of a very, very complicated internal structure. Committees, caucuses, party organizations within Congress. Those would all look very different to the people who served in the very first Congress, but at its core, the act of lawmaking would not be that surprising to those members if they were to come back. Today.

Katie Crawford-Lackey (20:46):

I want to talk a little bit about something we referenced earlier about this idea of representation and how it's structured within the Congress. We talked about what it looked like in 1787. This is kind of something that's continued to be debated over and if perhaps it was fair or a compromise back then, but does that reflect the America of today and is that still a fair structure that is representing the people in an adequate way?

Lauren Bell (21:13):

Sure. So I'm going to take that from two different directions. The first I'm going to say we've had a House of Representatives fixed at 435 members from more than a hundred years. So if you track over time the number of constituents that at any given house member is accountable to, actually you can look at the Constitution, and we were supposed to be adding new members of Congress every time the population grew. We do this every 10 years with the census such that members would represent about 35,000 people that was in the first Congress members were representing about 35,000. Today the average member of Congress represents about 760,000 constituents. We just haven't grown our Congress. Now, there are arguments in favor and against growing it, right? You could look at something like the UK House of Commons, which has I think 600 or so members that doesn't necessarily get you more action or speed up the process.

(22:17):

But from the representational side of things, if my house member represents me in 759,999 other people, the amount of attention that they can pay to me is. And so that's very different than how the framers perceived the concept of representation and the population-based house representation back in the late 18th century. The second thing I'll point out is that when it comes to the Senate, the Senate is one of our most undemocratic features of our democratic system today, I won't get the exact proportions right, but I think back in the late 18th century, senators from the largest state represented about 12 times as many constituents as the senators from smaller states. I believe today it's California and Wyoming that fit into that, and I believe it's a 54 times differential so that the two senators from California represent 54 times as many people as the two senators from Wyoming.

(23:27):

And so to the extent that part of the sort of one person, one vote ethos is how we think about democracy working, that's clearly not operating. When we think about representation in the Senate, and there have been calls by some congressional and then some, I would say sort of firebrand commentators to say we should just abolish the Senate, that the Senate is contributing to low levels of political efficacy that the Senate filibuster, which allows one senator typically anymore, it's a small group, but at least theoretically one senator to kind of hijack what others want to do. The fact that it takes 60 votes, a super majority to end a filibuster. There are a lot of folks who look at the Senate as an institution and say, this is so fundamentally undemocratic that it is actually undermining the cause of American democracy. I think all of those things are things we ought to be talking more about.

(24:32):

We ought to be having more conversations about what does it mean to have a republic, a representational democracy? Does that mean we should be thinking about representation as being much more roughly equal? Should we expand the size of the house? Those are the conversations that we should have. I think as a practical matter though, those would be such political conversations where it would be really difficult to convince folks that, yes, we should grow the size of the house because people will think about that, well, which party will benefit the most? Right? Or we should change the composition of the Senate in some way because again, there will be folks who say, well, that's going to benefit certain parties or certain states are then going to have more power. So all of those I think are really important questions. I don't hear them asked a lot outside of academic circles, but I think that they're important parts of how we should be thinking about the way Congress is engaging in representation.

Katie Crawford-Lackey (25:36):

And it sounds like this structure, as it was set up in 1787, focused on again, kind of Congress at that time represented a smaller group of people. Now it's very different. So there are some challenges or questions that should be asked about the inherent structure of Congress itself. Is that related to the power that Congress has and how other branches, the executive and judicial has gained power and gained influence, and is there a correlation there, or is that a whole separate kind of conversation?

Lauren Bell (26:07):

I think it's not wholly separate. I think it's maybe somewhat separate. The political scientist, congressional scholar, David Mayhew says that members of Congress are single-minded seekers of reelection. And I think that's as much a truism as you will find in politics and in political science. Every one of my undergraduates when they leave my Congress class can repeat back to you that members of Congress are single-minded seekers of reelection. So I think that's important to understand because what that means is that Congress regularly gives its power to the other branches. You can go back to the Great Depression and something like the Employment Act of 1929, where suddenly the whole country's in a depression. The unemployment rate is sky high. People want Congress to act, and Congress is like, no, it's the President who's responsible for this, right? The Employment Act of 1929 says it's the job of the President to guarantee full employment.

(27:07):

Now, I don't know anything in article two that would suggest that, right? I cannot fathom what the sort of constitutional argument for that is, but I can tell you what the political argument is. And that argument is that it's a lot better if people are mad at the President than if they're mad at me, they're a member of Congress, even though I know I can't actually do anything about it, but my constituents don't want to hear that. I can't do anything about it. They want me to fix it. So if I can push that off onto the president and say, I'd love to help you, but it's the President's job to guarantee full employment. Now I have shifted where their anger is directed. And similarly, Congress regularly passes laws that it knows are not constitutional, and in that sense wants to be able to say, Hey, look what we did.

(27:52):

We did this thing that you all really want. And then when the Supreme Court strikes whatever that thing is down, then members turn around and say, we tried. We did our level best. And if it weren't for that gosh darn Supreme Court, you would have this thing you had asked for. And so Congress has become really, really good at deflecting and about actively moving its own power over to the executive or doing things that knows are not going to pass muster constitutionally to allow those other institutions to take the heat. So I think that's related to these issues of legislative power and representation. I think we as the public probably don't generally have enough information about how our government is supposed to work to be able to assess when that's happening or to be able to really understand the consequences of something like Congress passing a law no to be unconstitutional.

(28:59):

A great example is the line item veto. When President Bill Clinton was in office, Congress passes a line item veto. There was nobody that thought a line item veto was constitutional, but there was a lot of public interest in giving the president a line item, Vito. And in fact, it was several members of the United States Senate who challenged the law. Once it was signed by the president, they had voted against it, and then they challenged it at the Supreme Court. In that case, the Supreme Court came back and said, we can't do anything about this because President Clinton hasn't used it yet. So it's not a real case. So if he uses it, come back and we'll address it. So a few months later, president Clinton used the line item veto. The senators brought their lawsuit back, and the court agreed that it was unconstitutional. So it wasn't like they didn't know what they were doing or nobody told them, or no one gave them a heads up. They did it because they could then all claim credit for passing a line item, Vito. And then when the court struck it down, they could disclaim responsibility for the fact that we don't have a line item veto.

Katie Crawford-Lackey (30:06):

And as we wrap up the conversation, what does all of this mean in terms of public trust? And I think we're in a moment where there's a lot of frustration about, in a lack, I think, of clarity and knowledge about how does our government work and is it really working for us, and what can Congress do or what can we do to restore that public trust?

Lauren Bell (30:27):

I think it's important to remember that the framers really did intend Congress to be the most powerful branch. And so anytime anyone hears a member of Congress say, gosh, there's just nothing we can do about that. They are not being truthful. That's not a partisan statement. We've seen congresses with leadership from both political parties engage in this. I think in terms of restoring public confidence, members have to be more attentive to their constituents. There was a really great New York Times kind of data project a few years ago, and when they reported the results, the headline was Congress has no idea what the people want. And the Times did this sort of controlled experiment where they had their data folks survey people in different congressional districts, and then they contacted the member's office to say, what do you think your constituents want? And there was so little agreement that these offices would say, oh, my constituents, they don't believe in nationalized, socialized healthcare, or something like that.

(31:32):

And then the times would report that no, actually 60% of the people they talked to really did want the government to provide better healthcare. And this was true issue for issue and true across the parties. I think our constituencies have gotten so large that members struggle to really get a bead on what people want. And I think the public tends not to be as well-informed about issues as they should be, such that they're not offering reasoned feedback to members. And so I think we need to restore that trust between and among members. I think we need to restore those constituency linkages. We've heard a lot about members canceling town hall meetings. I think that's a huge mistake from the perspective of building trust and for Congress to gain the input that it needs. I think Congress has got to start or reinvigorate its committee system and start holding real hearings, not showboating kinds of hearings. And so Congress in the seventies, eighties, nineties, nobody at the time would've said Congress is functioning really well. But we can look back on that now and say, Congress is actually much more active. They were much more connected to the people. They took their oversight responsibilities more seriously. And so I think fundamentally, we as the people have to hold our members accountable to representing us and really understanding

Katie Crawford-Lackey (32:59):

What we want and need. Well, I want to thank you, Dr. Lauren Bell for speaking with our audience today. Some of the insights you shared really did help give a sense of, okay, this is how it's structured, this is how it works, but here are some major points where it does need improvement. And this idea that yes, Congress does need to get in touch with what their constituents wants. Yes, I get that that's challenging. But then on the flip side, we as people really need to arm ourselves with knowledge, we need to have that knowledge know how the system works, and we need to hold them accountable. So thank you for imparting all that wisdom for us today. Thanks again for having me. It's always nice to be here. And I want to thank our listeners for tuning in today. I hope you'll subscribe and share the show with your family and friends and join us again as we consider the Constitution.